Handy v. Cohen et al

Filing 47

ORDER affirming and adopting Recommendation of U.S. Magistrate Judge 46 . Plaintiff's claims against Defendants Fish and Cohen are dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) for lack of service, by Chief Judge Wiley Y. Daniel on 12/21/11.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

11-cv-00644-WYD-KMT

WYATT T. HANDY JR.,
Plaintiff,
v.
DR. COHEN, Individual and Official Capacity;
ELAINE MEYER, Individual and Official Capacity; and
DR. R. FISH, Individual and Official Capacity,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff’s failure to respond to the court’s
Order to Show Cause, [ECF No. 45], filed October 12, 2011. This matter was assigned
to United States Magistrate Judge Tafoya for a recommendation by Order on Plaintiff’s
Motion for Reassignment dated June 6, 2011 [ECF No. 19]. Magistrate Judge Tafoya
issued a Recommendation on November 8, 2011 [ECF No. 46]. The Recommendation
is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),
D.C.COLO.LR. 72.1.
Magistrate Judge Tafoya recommends that the claims against Defendants Fish
and Cohen be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) for lack of
service. As Magistrate Judge Tafoya explains, on March 15, 2011, Plaintiff filed a
Prisoner Complaint [ECF No. 1] against Defendants Fish and Cohen. However, the
initial summons’ for these defendants were returned unexecuted and now more than 120

days have passed since the Amended Prisoner Complaint was filed. Plaintiff has not
responded to the Order to Show Cause to provide further information about Defendants
Fish and Cohen. Accordingly, Magistrate Judge Tafoya finds Plaintiff has failed to
provide good cause for his failure to timely serve Defendants Fish and Cohen, permitting
dismissal without prejudice under Fed. R. Civ. P. 4(m).
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 7.) Despite this advisement, no objections were filed to the
Recommendation. No objections having been filed, I am vested with discretion to review
the Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that "[i]t does not appear that Congress intended to require district court review of
a magistrate's factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings"). Nonetheless, though not required to do so, I
review the Recommendation to “satisfy [my]self that there is no clear error on the face of
the record.”1 See FED. R. CIV. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error on
the face of the record. I find that Magistrate Judge Tafoya’s Recommendation is
thorough, well-reasoned and sound. I agree with Magistrate Judge Tafoya that Plaintiff’s
claims against Defendants Fish and Cohen should be dismissed without prejudice

1

Note, this standard of review is something less than a "clearly erroneous or
contrary to law" standard of review, FED. R. CIV. P. 72(a), which in turn is less than a de
novo review, FED. R. CIV. P. 72(b).
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pursuant to Fed. R. Civ. P. 4(m). Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Tafoya
[ECF No. 46] is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Plaintiff’s claims against Defendants Fish and Cohen
should be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) for lack of service.

Dated: December 21, 2011
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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